Posts Tagged ‘international law’

The other day, we said the short answer is that the killing of Osama bin Laden was lawful. Some have asked for a bit more detail in the answer. We can’t give the full answer, of course, but we can give a slightly longer one than we did. A full answer is going to require more facts than we’ve been able to glean from the papers, and is going to have to come from the DoD and the State Department anyway. They haven’t given a full legal analysis yet (and that’s fine, by the way), and the actual facts seem to change each time we read about what happened. Fortunately, the law doesn’t change with the facts. So though we can’t give a full answer, we can make a few assertions with a fair amount of confidence.

First, lawful military targets do not only include those who are in the middle of shooting guns at your soldiers. Anyone who is an identified member of a hostile enemy is going to be a lawful military target.

Al Qaeda is a known hostile enemy, one which has been involved in combat against the United States for a long time now. Any identified member of that hostile enemy would be a lawful military target. It doesn’t matter whether that person was armed or not. Let’s repeat that: it doesn’t matter whether he was armed or not. It doesn’t matter whether he poses any immediate threat. All that matters is that he was an identified member of a hostile enemy.

With uniformed services, this is easy. If you see a uniformed enemy officer, you’re free to take him out. The uniform identifies him as a lawful target. He could be walking down the street, minding his own business — it doesn’t matter.

But with non-uniformed enemies, there has to be some reason to believe the guy walking down the street is a member of that hostile enemy. There has to be a reasonable certainty that he’s one of them. In other words, you’ve got a positive I.D.

If you’ve got someone who is an identified member of a hostile enemy — either by uniform or by positive I.D. — then a soldier is allowed to shoot them, even if they pose no particular threat at the moment. The lawfulness comes not from what they’re doing, but from who they are.

The only real exception is when they are hors de combat — a term of art that essentially means “no longer in a position to fight.” Examples include the wounded, POWs, and those who have surrendered.

The only variable in Osama bin Laden’s case is whether he was hors de combat at the time he was shot. Unless that exception applies, he was a perfectly lawful target. The orders to kill him were lawful, and those carrying out the kill mission were acting lawfully in following those orders.

We weren’t there, and neither were you, so it’s impossible to say whether bin Laden had been incapacitated or had surrendered prior to being shot. The facts reported thus far is that this wasn’t the case. He doesn’t seem to have been the type to surrender in the first place. And even if he had wanted to, the burden is not on the soldiers to figure that out — he’d have to make it extremely clear. Which can be difficult in the middle of a firefight.

So there’s no reason to believe he was hors de combat. Given that, and given that there was a reasonable certainty that he was a member of al Qaeda, a known hostile enemy, he was a lawful military target, and it was lawful for the SEALs to take him out.

It’s only been a few days since Osama bin Laden was killed in a U.S. military assault on his compound in Pakistan. And in those few days, the internet has been buzzing with discussions, debates and hand-wringing over whether the U.S. acted lawfully. We’ve been reading thoughts of people on every continent, regular folks with access to a computer, who may or may not even know what they’re talking about. And all we have to say is this:

We’re glad to be living in a world where such hand-wringing is possible. More than that — a world where it’s actually meaningful (rather than silly) to wonder whether a precise military action by the world’s single greatest military power, against its universally-acknowledged military enemy, comported with some higher and overriding law. A world where such hand-wringing is done at great length by that same great power, prior to engaging in the military action to begin with.

Imagine that, just for a moment. Has this ever before been the norm, in the entire history of mankind? Because it sure is now.

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How did we get here? How did the world evolve to a point where the Rule of Law is the rule, not the exception? Where everyone pretty much expects that even the greatest military power is not above the law?

It’s been a long time coming. International law has been developing for centuries. But credit has to go to the U.S. and to the U.N., both for living by the Rule of Law (most of the time) and spreading the ideal and the idea. It matters that the world’s superpower acknowledges the law, and cares deeply whether its actions are lawful, no matter which party happens to hold the presidency at the moment. It also matters that the world has an engine for forming and enforcing (somewhat) rules that are binding not only on those who would be bound, but also on the strongmen and thugs who would not.

Of course, we’re not all the way there yet. There still are plenty of places where the Rule of Law doesn’t exist. They suffer for it — not just atrocities and depredation, but failed economies, corrupt governments, and dearth of opportunity. If there is one thing above all that separates the first world from the third world, it is the Rule of Law. Especially in this globalized world, the places that succeed are those where contracts can be counted on, everyone has to play by the same rules, and the rules are actually enforced. Once you’ve got that, you can kind of predict what’s going to happen with enough certainty to invest one’s time, labor or capital to actually do something.

And it’s easy to spot the countries without the Rule of Law. For example:

Still, the world is on the right path. Let’s hope that there really is some sort of “arrow of history” like the one Francis Fukuyama proposed back in ’92 (though he did subsequently back away from the idea). We’re hardly Utopian in outlook — our own mother calls us “old doom and gloom” — but it’s not unrealistic to hope for at least a trend towards more and more Rule of Law in the world, with the result of more and more general safety, security and opportunity.

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But we’re getting off topic.

The point is, we’re glad to be living in a world that can be full of hand-wringers over whether the U.S. acted lawfully in taking out an apparently unarmed Osama bin Laden, without instead capturing him and putting him through a criminal process of some sort with due process, etc.

(And for those who really want to know whether it was lawful or not, the short answer is yes. The medium answer is he was a lawful target of a lawfully authorized kill mission during a war in which both he and the U.S. soldiers were combatants. From all that we’ve read, it was done by the book.)

We started yet another trial this week, and it’s looking like it will continue into the first week of April. Not our longest trial ever, but fairly lengthy for a state case. But at least it’ll be over before the trial of Raj Rajaratnam, which also began this week, and which is expected to last through the beginning of May.

But these are nothing compared to the trial of Charles Taylor, former head of Liberia. This is the same guy who ran for election with the campaign slogan (not making this up): “He killed my ma / He killed my pa /But I will vote for him.” Probably a thinly-veiled threat that those who didn’t vote for him would get the same treatment.

Taylor first came to prominence in 1980, when he took part in the coup led by Samuel Doe. Whose government he soon ripped off in a massive embezzlement scheme. He fled to the U.S., got picked up and thrown in prison, and made a daring prison escape before he could be extradited in 1985. He high-tailed it to Libya and the protection of Muammar Gaddaffi, and went through some terrorist training camps.

With funding from Gaddaffi, he organized a rebellion against the Liberian government in 1989. The civil war would rage for seven years, utterly destroying the country. Slaughter, fear and lawlessness made Liberia the classic “failed state.” There was no government, only destruction. (A State Department official we knew at the time said it was no good trying to reach anyone in charge there. “The phone’s just going to ring and ring, because there’s probably bullets flying through the office and they’re hiding under their desks.”) The word “horrifying” doesn’t begin to describe what was going on throughout the ’90s there.

In 1997, Liberians elected him president in the vain hopes that this would avoid any more civil war. But within two years, it was raging again.

But none of this is what he got in trouble for.

Apparently, Liberia wasn’t exciting enough, so he got involved in the horrors over in Sierra Leone. During his own civil war, Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone. Because the government there was so corrupt, it had no real resources, and there was pretty much no economy. So they couldn’t really fight back. Still, they wound up having their own brutal civil war throughout the 90s. A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Meanwhile, the Special Court for Sierra Leone managed to file an indictment against Charles Taylor for war crimes and crimes against humanity, based on what he did in Sierra Leone.

He was indicted in 2003.

His trial just ended today.

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Even if you take into account the fact that he hid out in Nigeria until finally being arraigned in 2006, and the fact that the trial proceedings themselves didn’t really begin until 2007, we’re still talking a four-year trial. That’s a long time to hear a case.

And the trial isn’t really technically over, anyway. Just the evidentiary part is over. The judges are going to take the next several months before rendering their verdict.

On our main website, we wrote a brief primer on international law, mostly for our own enjoyment. (The same reason why we write this blog, actually.) To our constant amazement, it gets cited heavily around the internet, and has been on the syllabus of at least a couple law school classes. So now we feel all obligated and stuff to keep it accurate and up to date. At some point, we added a section on the subject of Lawfare. Briefly put, Lawfare is the use of the law (yours or your opponent’s) as a tool of warfare, either to gain a military advantage, or to deny one to your adversary. It’s too long to excerpt here, but you can read the section here, if you’re interested.

But if you’re really interested, an even better précis of Lawfare can be found in Gen. Mark Martins’ guest post this morning over at Lawfareblog. His posts this week have been building up to this one, a great summary of the concept, with the depth of insight one would expect from the commander of the Rule of Law Field Force in Afghanistan. Go read all of his posts, for sure, but this one is outstanding.

First, Gen. Martins sums up three competing definitions of the term. “Meaning A,” as he puts it, refers to the hijacking of Western sensibilities of justice and civil rights, by those who do not share such sensibilities, in order to undermine Western resistance. “Meaning B” is a wholly unrelated concept, an intellectual battle over the scope of national security law. “Meaning C” is a Western strategy that turns the cynical strategy of Meaning A on its head, an approach that applies the rule of law to all counterinsurgency tactics, thereby providing the legitimacy that is so important in a war of perceptions.

If he had stopped right there, this would have been a valuable enough contribution. But he goes on to provide five clear observations about each of these three concepts, which makes it a must-read. The first point is probably his best, that each definition contains a kind of hamartia or tragic flaw that could undermine it. Meaning A cries “unfair,” which is sort of silly in the context of war, where ruses and propaganda are about as fair game as it gets, and without which few victories are ever achieved. Meaning B, the contest of ideas alone, can bestow undeserved legitimacy and moral equivalence on the ideas of the enemy, which could lead to the very undermining of the principles one seeks to advance. Meaning C, “by placing the law in service as a ‘tool’ of war, risks undermining the authority of law itself.”

Go over there and read the rest of it. In the meantime, we need to go update our primer.

The week’s posts up until now—written on a Blackberry while we moved or found small spaces of time between engagements—position me finally to move from the definitional and philosophical matters I pondered yesterday in Khost to Jack’s September question: Do I consider counterinsurgency (COIN) in Afghanistan to be “lawfare.” The BLUF (“bottom line up front”), an expression used by each of the U.S. military services represented here in Parwan province and throughout our military around the world, is that yes, we are waging a form of affirmative lawfare.

I am confident enough in that to have provided the BLUF at the outset on Monday, even before trying to put into clear text and thus confirm my precise reasoning. The conclusion that we are indeed waging a form of lawfare is particularly true of the Rule of Law Field Force (ROLFF). But there are important caveats, and I will draw illustrations from the preceding four days’ blogs to make the point.

The most obvious of the caveats is that we want no part of the perfidious lawfare described as Meaning A in my post of yesterday—except, that is, to combat those who wage it. Jack specifically distanced COIN operations in Afghanistan from this sense of lawfare, which is not only punishable under multiple articles of the Uniform Code of Military Justice, but is also regarded as dishonorable conduct within our uniformed ranks. Compliance with law is what legitimates the actions of our troops and separates their actions—sometimes necessarily violent and lethal—from what very bad people in criminal mobs do.

The post goes on to discuss the subject in more detail. But we want to stop right there and shout out “he’s writing all this in between engagements in a goddamn war!”

The International Criminal Court came into being almost 8 years ago. It has jurisdiction to prosecute genocide, crimes against humanity, war crimes, and criminal aggression. Well, that is, it has jurisdiction to prosecute those crimes once they’ve been defined. And to date, they haven’t yet come up with a definition for “crimes of aggression.” Nor have they specified the conditions where the ICC could get involved in such crimes.

But maybe that’s about to change. Reuters reports that ICC delegates today have been busily “seeking to agree [on] a definition of state aggression, and how ICC investigations into the crime … could be triggered.” A rule is expected to be announced and adopted tomorrow.

The current draft appears to be a compromise that allows member countries to “opt out” by affirmatively stating that they don’t want the ICC to be able to investigate them for aggression. The idea is that this will make it harder to opt out, by forcing countries to announce that they don’t want to play by the grown-up, civilized rules. Any member country that doesn’t opt out, or its leaders, could otherwise get investigated.

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The ICC is a creature of treaty, so it only affects countries that (more…)

Last year, for reasons we’re not entirely clear on, Hamas-led Palestinians started firing rockets and mortars at civilian populations in Israel. Israel put up with it for a while, but then after Christmas it finally responded with a bunch of air strikes on targets in the Hams-controlled Gaza region, and blocked shipping into the area.

As usual, there was a U.N. outcry against Israel’s actions, and a commission was formed. Last week, after several months of review, the commission came out with its report. Although it did say that Hamas shouldn’t have fired rockets at civilians, it came down hardest on Israel, concluding that Israel had committed major violations of international law, probably war crimes, and its actions did not count as self defense.

There have been the usual cries of unfairness all around, what one would expect in any such matter. The whole matter seems to be just par for the course, and we admit to not paying all that much attention to any of these goings-on.

But this morning, a piece in the WSJ by notable criminal law scholar Paul H. Robinson caught our eye. In his article, “Israel and the Trouble With International Law,” Mr. Robinson argues that, although the U.N.’s report might strike many as “a bit unsettling or even bizarre,” in nonetheless is probably correct, in terms of international law.

Mr. Robinson argues that the rules of international law forbid the kind of self defense that American criminal law would allow. Under international law, he says, if a gang of thugs is openly preparing to rob your store and kill your security guards, and is assembling in the parking lot across the street, and there are no police, you still cannot act in self defense until they actually start their attack. But under American criminal law you would be allowed to use such force as is “immediately necessary” to prevent the attack from happening, without waiting to be attacked first.

Similarly, he says, if a neighbor was letting thugs use his house, from which they regularly attacked your family, and there are no police, then international law would forbid you from using force against the thugs and the house they’re taking sanctuary in. But American criminal law would let you do it.

And as a third example, he says that international law only allows force against those thugs when they’re presently in the act of attacking your family, and not during the periods in between attacks, even though it’s an ongoing series.

So, he concludes, by going after the source and trying to prevent further acts of violence against its civilian population, Israel probably did violate international law here. The rules only let it use force to stop the individual attacks, and only while they’re actually happening.

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We admire Mr. Robinson very much, but he’s not precisely correct here. He focuses on Article 51, but that’s not the only source of law here. The law on pre-emptive self defense is a non-Charter use of force, but which is nonetheless permitted by customary international law.

Article 51 of the U.N. Charter says that nothing in the Charter is to be construed so as to impair the “inherent right” (meaning it pre-existed the U.N.) of nations to use self defense against armed attack.

“Armed attack” does seem pretty limiting. Not every act of aggression counts as an attack, after all. Merely threatening force doesn’t count. The enemy may in fact be involved in a use of force, and it may even be an illegal use of force, but it still might not be an armed attack.

So Robinson cites the Nicaragua case, where the Sandinistas in Nicaragua were unlawfully supplying arms and sanctuary to insurgents trying to topple El Salvador’s government. Even though this was an illegal use of force, El Salvador had no right under international law to use force itself in order to stop Nicaragua’s violations of its sovereignty.

But an armed attack can be taking place if the enemy is massing across the border. Like his example with the thugs across the street, who are just waiting for night to fall before they attack your store. If that massing of troops is just an exercise, well then you’re not allowed to attack them.

But if it truly is preliminary to an imminent attack, then by all means strike them. Read on to see why it’s okay to do so.

Remember, though, you need to immediately report to the Security Council that you are under armed attack. And you need to promptly report your response actions to the Security Council.

The main things to keep in mind are that your force must be necessary, and it must be proportional.

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The most famous case in international law, The Caroline (1906), deals with the hot-button issue of preemptive self defense. This one predates Article 51, and it is certainly part of customary international law.

The United States had a bunch of nasty battles with Canada during the War of 1812. There was a lot of bad blood, and the two countries remained hostile for many years thereafter. Unlike now, Canada was the major power, and the U.S. was the little guy. Nevertheless, the U.S. kept trying to take bits of Canada, and the border between Lake Erie and Lake Ontario was heavily militarized. Sound familiar?

The Canadians learned that the U.S. was planning a military incursion across the border into Canadian territory. Before the U.S. began its attack, however, the Canadians struck first.

The Canadians crossed the border first, grabbed the U.S. ship The Caroline, and killed everyone on board. Then they set the ship on fire. Then they launched it over Niagara Falls.

The U.S. Secretary of State at the time was Daniel Webster. He and his British counterpart Lord Ashburton began writing back and forth about what constituted proper self defense. It resulted in a letter from Webster saying:

The President sees with pleasure that your Lordship fully admits those great principles of public law, applicable to cases of this kind, which this government has expressed; and that on your part, as on ours, respect for the inviolable character of the territory of independent states is the most essential foundation of civilization. And while it is admitted on both sides that there are exceptions to this rule, he is gratified to find that your Lordship admits that such exceptions must come within the limitations stated and the terms used in a former communication from this department to the British plenipotentiary here. Undoubtedly it is just, that, while it is admitted that exceptions growing out of the great law of self-defense do exist, those exceptions should be confined to cases in which the ‘necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.’

The law arising from this case is that, for pre-emptive self defense to be lawful:

1) The necessity must be immediate;

2) The necessity must be overwhelming;

3) There must be no other choice;

4) There must be no time to deliberate; and

5) It should also be proportional. (This comes from an earlier letter. Here, killing everyone, burning the ship, and sending it over the falls was found not to have been proportional.)

The Caroline keeps coming up again and again whenever the question of anticipatory self-defense is proper. These five criteria are the ones that get cited by pretty much everyone.

The Nazis, for example, when they invaded Poland, went out of their way to make it look like Poland had started it, so as to justify their invasion. They even dressed up Polish prisoners in German uniforms, shot them and filmed it, and blamed it on Poland. They were trying to make the facts appear to fit the requirements of The Caroline. The Nuremburg tribunal, however, did not buy it.

In the Cuban Missile Crisis, the United States went out of its way to say its actions were not self-defense, but merely a quarantine of Cuba on the high seas to keep the missiles out. A blockade certainly is a kind of use of force, but it is less intrusive than other kinds. The United States proposed this theory in the U.N., and it was representatives from Ghana (who, unlike ours, had been well-educated in international law) who stood up and cited The Caroline case, asking “is this emergency instant, overwhelming, leaving no choice of means, and no moment for deliberation?”

When the Israelis bombed Iraq’s nuclear reactor in 1981 (because it could have been capable of making weapons-grade plutonium), that also led to lengthy discussions of whether the standards for preemptive self-defense attacks had been met. Of course, the act had already been done by then.

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So if one reads the U.N. report more closely, one finds that it goes out of its way to find Israel’s strikes to have been disproportionate to the threat, primarily by including the blockade of shipping. The reasoning goes that the blockade punished the entire population, and wasn’t necessary to self defense.

We’re not particular fans of Israel, but that simply doesn’t wash. Gaza doesn’t produce its own rockets and mortars. Hamas gets them from Iran, Syria or other sources. So a blockade to prevent the ongoing attackers seems perfectly proportionate and necessary here.

Going through the five factors, what do we have?

1) Was the necessity immediate? Certainly. Israel had been under ongoing attack for months, with no sign of it letting up.

2) Was the necessity overwhelming? Sure. Civilians were being targeted for strikes by military weapons, and sovereignty was at stake as well.

3) Was there no other choice? It sure looked like it. Negotiations and diplomacy seemed only to be encouraging further attacks, as they always seem to do in that part of the world.

4) Was there no time to deliberate? Hmm. On the one hand, the Israelis seem to have been deliberating for months already, but if that precludes them from eventually saying enough is enough, then such a rule would encourage less deliberation, not more. Their population was under attack, and there was reason to believe it was going to happen again immediately, so it seems justifiable to call this as being no time to deliberate.

5) Was the response proportionate? The blockade was, to the extent it was focused at preventing Hamas from making further attacks. The air strikes targeted Hamas command, control and munitions, using precision-guided weapons to minimize collateral damage. It sure seems to have been proportional within the meaning of the law. Although many non-Hamas civilians were killed or wounded by the strikes, that does not change the fact of their limited purpose and execution.

So yes, if one only has the U.N. Charter to go by, Israel would seem to have violated international law. But there’s more to international law than just the U.N. charter. And under customary international law, it looks like Israel’s use of force was a lawful act of pre-emptive self defense.

Although the nation of Sierra Leone has had an extradition treaty with the United States in effect since 1935, the African country has never complied with a single request for extradition. Until yesterday, that is.

Its government never complied with such requests, one might argue, because there really was no government to speak of. The country descended into failed-statehood shortly after becoming independent in 1961, with an almost totally non-functioning government. It was one of those unfortunate countries where, if you had to call someone in charge, nobody was going to pick up (embassy types would joke that it was because the officials were hiding under their desks from all the bullets flying around). During Liberia’s horrifying civil war in the 1990s, its warlord Charles Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone. The corrupt government, which had no real resources due to a resultingly nonexistent economy, couldn’t do much to fight back. A brutal civil war ensued that raged throughout the 90s. A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Following the successful UN intervention, Sierra Leone has started to adopt the rule of law. Leaders of both sides of the war were subjected to UN war crimes tribunals. Democratic elections were held in 2007, and when no presidential candidate won a majority, rather than devolve into violence, the country simply held a runoff election. Important laws protecting public order have since been passed, and enforced.

So yesterday’s extradition is an important step in Sierra Leone’s process of joining the successful nations of the world, by complying with its treaty obligations under international law.

The case began in July of last year, when a cargo plane made an emergency landing at Lungui. The plane was found to contain military weapons and ammunition, as well as more than 600 kilos of cocaine.

Sierra Leone charged 15 people with importing cocaine, pursuant to the National Drug Ace of 2008, and related charges. The new criminal justice procedures were followed, resulting in a trial that ended on Tuesday. After the lengthy trial, Justice Mark Brown sentenced most of the defendants to 5-year jail terms and fines of $1 million.

Three of the defendants, Geraldo Quintana-Perez, Harvey Steven Perez and Alex Romero, were then immediately handed over to FBI agents at the Lungui airport, pursuant to the extradition treaty. All three were wanted in the United States on separate drug-related charges.

Quintana-Perez and Perez are to be arraigned today in the Southern District of New York. The SDNY’s acting U.S Attorney, Lev Dassin, remarked in a press release that “this is the first transfer of defendants from Sierra Leone. We hope that the transfer of these defendants to American custody marks the beginning of a strong partnership between the United States and Sierra Leone in combating the international drug trade, which poses a serious threat to both countries.” DEA acting Administrator Michele Leonhart added that “history is made today.”

The Minister of Information and Communication for Sierra Leone, Ibrahim ben Kargbo, stated that the prison sentences handed down by the Sierra Leone court will be respected by the United States, and that the jail terms for these three defendants will be served in U.S. prisons.

This truly is an important step in Sierra Leone’s journey towards modern statehood, with its government being beholden not only to its own laws, but also to its obligations under international law. The rule of law is perhaps the single most important requirement for a country to succeed, for its economy to prosper, and for its citizens to be protected. Without the certainty that the government will abide by the rules, that agreements will be enforced, and that rights will be protected, a country cannot thrive. Some other countries would do well to watch Sierra Leone’s rapid progress.

Starting in November, we’ve predicted two alternative reactions that Sudan’s Omar al-Bashir could have if the ICC issued an arrest warrant. On the one hand, he could start acting all cooperative, and thereby appease a U.N. Security Council that wants any excuse to avoid ICC action here. On the other hand, Bashir could just terminate international aid to Darfur, kick out peacekeepers and aid workers, and then blame the resulting death and suffering on the West while he consolidates his local power.

It looks now like Bashir has gone with door number two. The BBC reports today that Bashir now says “he wants all international aid groups out of the country.” Speaking to a rally, Bashir stated that “within a year, we don’t want to see any foreign aid group dealing with a Sudanese citizen. If they want to bring relief, let them drop it at airports or seaports. Let [Sudan’s] national organizations deal with our citizens.”

Within the past week or so, Bashir has already expelled 13 large international organizations, claiming that they were spying for the ICC.

According to the Beeb, “the United Nations said the expulsions would leave millions at risk of a humanitarian crisis.”

So okay, lesson learned (re-learned, of course). Dictators don’t choose to go gently into that sweet good night of punishment at the hands of modern procedural justice. Go figure.

So then fine, but now what? Will the Security Council take this opportunity to announce a deferral of any prosecution, under Article 16 of the Rome Statute, in the stated interests of forestalling any humanitarian crisis? They could choose to be seen as pragmatic and wise, opting to sacrifice the individual prosecution of the dictator in order to save the lives of tens or hundreds of thousands. And of course, those P5 nations opposed to ICC action (China and Russia because Sudan is an important partner, and the U.S. because it doesn’t want the precedent of prosecuting a head of state) would have the out they’re looking for, all while appearing humane and acting for the best.

Or will they allow the ICC’s arrest warrant to continue, watch the foreign aid be expelled, watch Sudan’s warlord take control of any aid naively dropped off at the border, and stand on principle to bring the rule of law to failed states?

We’re going to go with the cynical prediction this time. Just a hunch.

Here in Manhattan, we like to brag that we’ve got the busiest courthouse in the world. But at least the system can handle it. According to Tuesday report from the chief justice of the New Delhi High Court, however, the courts in India are all just as busy, but the system is so broken that they just can’t handle it.

The Delhi High Court, which has jurisdiction over civil, criminal and constitutional matters, is so overwhelmed that the chief justice estimates it could take 466 years just to wade through the 2,300 criminal appeals waiting to be heard.

The reasons for the backlog are not complicated. India’s justice system has a longstanding reputation for “corruption, inefficiency and lack of accountability,” according to this AP report, “often making the rule of law unattainable for all but the wealthy and the well-connected.”

Corruption and unaccountability are enough on their own to doom any judicial system. They destroy the perception of justice. And in the realm of justice, as in the worlds of finance and politics, perception is reality. If people think that crimes are not efficiently, consistently and fairly punished — whether truly so or not — then punishment loses its deterrent effect. If people think that the law does not consistently and fairly protect rights and interests — whether it does or not — then the law may as well not exist, and the rule of law becomes a joke.

As prominent New Delhi lawyer Prashant Bhushan puts it, India “only lives under the illusion that there is a judicial system.” Bribing judges, he adds, is commonplace: “It’s a lucrative business.”

And it doesn’t look like anything can be done about it, at least not in the short term. Corruption is a commonplace of Indian society, says retired Supreme Court justice J.S. Verma, so “of course corruption is there. The people who man the courts and the court system come from the society.”

On top of the systemic failure of the rule of law, the courts are under an enormous administrative burden as well. There are only 11 judges for every million people — there are ten times as many in the U.S.

The administrative burden is exasperated by the bureaucracy, which slows down the legal process with overstrict formalities and procedures that can overwhelm a layperson.

The administrative burden can be met by shifting resources to the judicial system, and by eliminating bureaucratic time wasters. Political decisions only. But of course that would only happen if the government wanted to do so. That’s a tall order when the ruling classes are the beneficiaries of the present state of affairs.

As previously reported, the ICC prosecution of Sudan’s leader Omar al-Bashir has had its share of challenges. Yesterday, the African Union threw another monkey wrench into an already shaky machinery.

The African Union is an international organization of all African nations except Morocco. The organization, which is expected to name Libyan head Muammar Khaddafi as its new chairman next week, lacks significant authority to do much more than scold or impose mild trade sanctions. But it does have a peacekeeping force in the Sudan. After the force ran out of funds a couple of years ago, the United Nations stepped in to run the operation in a joint effort known as UNAMID.

Yesterday, the AU formally called on the UN Security Council to suspend the ICC indictment of al-Bashir. The leadership fears that any arrest would cause violent uprisings by al-Bashir’s supporters. They also claim that al-Bashir is a necessary party to ongoing peace mediations in the region, and indicting him would derail the peace process.

The Security Council has authority to defer the prosecution under Article 16 of the Rome Statute, which established the ICC in 2002.

The Security Council’s permanent members already have incentives to stall the prosecution. The Sudan is a major oil supplier to China, and the two regimes are very tight. China also opposes any action that would create a precedent of interference in domestic affairs. Russia also has strong economic ties, particularly as the supplier of Sudan’s weapons and attack helicopters. The U.S. wants to avoid any precedent of having leaders held to “international” standards of conduct. Britain and France would prefer any solution that calms the ongoing violence, rather than causing more.

So the AU’s plea is certain not to fall on deaf ears. It’s almost as if the AU is preaching to the choir.

But the suspension of prosecution on these grounds would actually cause a much worse precedent for the AU and the UN. The position essentially boils down to “we’d better leave thugs alone, because if we try to enforce the rules then they’ll act like thugs.”

In other words, if the Security Council goes along with this, its policy will essentially be to stay out of situations like Darfur. This is contrary to the stated policies and desires of the UN and its membership. It would be a mistake from a policy point of view, and it would create an undesirable precedent from a legal standpoint.

The ICC should just get it over with. Exercise its authority, hold a civilized trial, and act accordingly. That would demonstrate to the world that it exists for a reason. Delay would only fan widespread belief in the ineffectiveness and injustice of international law, as crimes go unprosecuted and unpunished for years and years. If there’s sufficient evidence, then there’s no reason not to proceed. If there’s insufficient evidence, then let that come out too. Either way, let the world move forward.

But to refuse to act because of a fear that people might riot as a result… well, that just takes authority away from the civilized bodies and hands it back to the lawless types that law is supposed to protect against in the first place. It would be an act of cowardice masking itself as prudence, and would be despicable.

A couple of weeks ago, we reported that Omar al-Bashir had announced a unilateral ceasefire in an attempt to avoid being formally charged by the International Criminal Court. ICC chief prosecutor Luis Moreno-Ocampo had asked that al-Bashir be charged personally with multiple counts of genocide, crimes against humanity, and war crimes. We saw the ceasefire as an attempt to appease Britain and France in the hope that they would approve an Article 16 deferral of his prosecution.

We also pointed out that, if all else fails, al-Bashir could also just terminate the humanitarian aid to Darfur, kick out the U.N. / African Union peacekeepers, and blame the resulting death and suffering on the West.

But today, ICC prosecutor Moreno-Ocampo warned the Security Council that al-Bashir is already preparing to go the violent route. Moreno-Ocampo stated that al-Bashir has made direct threats of reprisals against peacekeepers and civilians. He added that “such threats should be seen for what they are: a confirmation of criminal intentions.”

We had also suggested that al-Bashir might think of throwing his (Orwellian-titled) Minister of Humanitarian Affairs to the wolves. But Moreno-Ocampo stated that al-Bashir is instead protecting that minister from the dozens of war crimes charges pending against him. “The impunity afforded to [the minister] is a direct message to all perpetrators of crimes in Darfur,” he said. “That message is, ‘the president will protect those who are following his orders.’”

Because al-Bashir appears to be readying more violence, Moreno-Ocampo warned the Security Council to be prepared to take action in carrying out any arrest warrant.

The Security Council, however, now appears less and less likely to do so. Although the Council had unanimously referred the matter to the ICC in the first place, now that push is coming to shove certain Council members are backing off. China, Russia and Libya, as we pointed out, have close ties to al-Bashir’s regime, and are unlikely to support a confrontation. The African Union and the Arab League have now also asked the Council to defer the investigation of al-Bashir, on the curious grounds that it’s not helpful to the peace process.

There are some small voices pushing for Security Council action, however. Costa Rica’s U.N. Ambassador, Jorge Urbina, stated that although there is disagreement among the Council members as to whether to approve an Article 16 deferral, “we regret very much the pressure that has been put on the Council to defer the case from the court. We believe that this pressure should [instead] be put on the government of Sudan to comply with the decision of the court.” Human rights groups are also pushing for a unanimous message from the Council that the Sudan regime must comply with the ICC and that it will not permit retaliatory violence.

By all appearances, then, it looks as though al-Bashir is going to get the deferral he sought. The combination of his ceasefire, his allies on the Council, and the fear of reprisal might just be enough to do the trick. The world now looks to the ICC to see whether it will actually issue the arrest warrant that will force everyone’s hand.

Omar al-Bashir seized power of the Sudan in 1989, and has ruled ever since as the military dictator of one of Africa’s most ruthless regimes. In the Darfur region of western Sudan, a war has raged for about five years, with government troops and proxy fighters committing massive bloodshed against rebel groups as well as civilians and entire villages seen to be sympathetic to the rebels. Despite enormous outcry from the rest of the world, and pressure from the U.N. and powerful nations, al-Bashir has shown no inclination to temper or cease the bloodshed. On the contrary, it appears that his regime has only ramped up the violence in a war that is estimated to have killed hundreds of thousands of human beings through murder, combat, starvation and disease.

But earlier this week, al-Bashir announced a unilateral ceasefire.

He did so, not because of governmental pressure or diplomacy, but because the International Criminal Court’s chief prosecutor, Luis Moreno-Ocampo, asked for al-Bashir to be charged personally with multiple counts of genocide, crimes against humanity and war crimes.

Charges have not been formally brought, but the ICC is expected to go forward soon. If he is formally charged, he will be the only head of state to face ICC criminal proceedings. This would harm his position at home, especially if he were to be prosecuted for genocide, and if the charges were to stick. Despite appearances, al-Bashir is believed to truly fear a conviction under international criminal law.

To avoid that possibility, al-Bashir took advantage of a technicality permitting the U.N. Security Council to defer legal action. China, one of the five Security Council permanent members, is tight with its major oil supplier, and would likely go to bat for Sudan. Russia, another permanent member, has significant economic ties to Sudan, particularly as the supplier of weapons and attack helicopters used by the regime to such deadly effect.

He still needs to get the approval of the United States, Britain and France, however, if he wants to get a deferred prosecution under Article 16 of the Rome Statute (which established the ICC in 2002).

We know what you’re thinking — these three modern, civilized, Western powers would never go along with that. Well, you might be wrong. Letting the ICC prosecute a head of state would be a terrible precedent for the U.S., which routinely declines to be held to “international” standards of conduct. Britain and France are perceived as open to “positive responses” that make the problem go away.

Hence this week’s ceasefire. It’s a “positive response” that might help appease Britain and France. There’s more al-Bashir can do, of course. Sudan’s Minister of Humanitarian Affairs — the person responsible for the aid effort to Darfur — is already indicted on 51 war crime counts. Throwing the minister to the wolves would be another nice gesture.

And if all else fails, he can just terminate Darfur aid, kick out UNAMID (the wholly ineffective joint U.N.-African Union peacekeeping force), and then blame the resulting death and suffering on the West. That could work, too.

So far, however, it looks like he’s taking the plea. The world is watching to see if the ICC will actually be effective in halting the ongoing tragedy.

Nathaniel Burney writes The Criminal Lawyer mainly for his own amusement and that of his sexy sexy followers. Although he is brilliant, talented and charming, he's modest enough to admit that he's also dashingly handsome. You can learn more about him at his firm's website.

This blog does not constitute legal advice, and does not create or imply any attorney-client relationship. If you have a real legal issue, the internet is not a substitute for a real live lawyer. Your local county bar association should be able to recommend one for you.